England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT CARDIFF
Mrs Justice Nicola Davies D.B.E
T20157506

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/06/2016

Sir Brian Leveson P:

1. On 8 December 2012, one week short of his 13^th birthday, Ryan Morse died of Addison's disease, which is an autoimmune disorder with a prevalence of 10-15 cases per 100,000, and even rarer in children. In its early stages symptoms are non-specific: for example, fatigue, malaise, weakness, abdominal pain, vomiting, and weight loss, all of insidious onset. Its eventual diagnosis is often established only at the time of acute symptoms at or near a terminal stage known as adrenal crisis. The Crown's case, based upon the evidence of Professor Hughes, an endocrinologist, was that even if diagnosed at a very late stage, and at a time when the patient would be gravely ill, the condition can be stabilised and the patient restored to good health.
2. Ryan's death has been an unmitigated tragedy for him, his family and all who loved him. It is not surprising, therefore, that an investigation was undertaken into the circumstances in which the signs of ill health were not picked up or acted upon in such time as would have permitted treatment. That investigation led to the prosecution of Dr Joanne Rudling and Dr Lyndsey Thomas for gross negligence manslaughter at a trial in the Crown Court at Cardiff before Nicola Davies J and a jury, which commenced on 3 May 2016. On Monday 16 May, at the close of the prosecution case, the Judge ruled that there was no case for either doctor to answer in relation to the allegation of manslaughter, although a similar submission in relation to a further count alleging doing an act in relation to the medical record tending and intended to pervert the course of justice was rejected.
3. The Crown (represented by Mr John Price Q.C.) accepted the Judge's decision in relation to Dr Thomas and the prosecution against her thus came to an end. In relation to Dr Rudling, however, the Crown intimated its intention to appeal the Judge's decision pursuant to s. 58 of the Criminal Justice Act 2003 ("the 2003 Act"), providing the necessary undertaking that she would be acquitted if leave to appeal to the Court of Appeal was not obtained or the appeal was abandoned before its determination: see s. 58(9) of the 2003 Act. The Judge did not grant leave but ordered expedition and retained the jury to continue the trial when it was possible to do so.
4. In the circumstances, the Registrar referred the application to the full court on the basis that if leave is granted, the appeal will be heard. The work of this court was thus reorganised so that it was possible for the application to be heard on 25 May. In the event, we refused leave (which has the effect of bringing the manslaughter trial to an end) but, having regard to the important issues involved, reserved our reasons for doing so. These we now provide.

The Facts

5. Prior to the summer of 2012, Ryan had an unremarkable medical history. He was a fit, healthy and very active child. In July 2012, however, he first began to reveal symptoms such that, on 20 July 2012, his mother, Carol Morse, took him to the Abernant Surgery in Abertillery, South Wales. Neither then, nor thereafter, was the true cause of the admittedly non-specific symptoms which Ryan exhibited, or the progressive decline in his health over the following five months, recognised or diagnosed, although there were five further relevant medical consultations involving three other doctors. It is a matter of fact that the diagnosis of Addison's disease, and the cause of death as Addison's disease crisis, were only identified after his death; but it is of critical importance, at this early stage of the recitation of facts, to underline that it was never alleged either that the Respondent to this appeal, Dr Rudling, or any of the other doctors who saw Ryan was at fault in having failed to diagnose Addison's disease, not least because of its rarity and the non-specific features of its early symptoms.
6. The prosecution of the two doctors turned upon telephone calls which each had with Ryan's mother on 7 December 2012, but to provide the context a little more of the medical history is necessary. We take it from the ruling of Nicola Davies J which is in these terms:

"In a school trip on 18^th July2012, Ryan complained of tiredness. He was unable to take part in the activities and, when seen at the end of the day, he appeared confused and disorientated. He was first seen by a doctor at the surgery on 20^th July 2012; the doctor diagnosed a viral infection. The condition continued throughout the summer. It was the evidence of Ryan's mother that in addition to tiredness, aching of legs, sickness every two or three weeks, Ryan's skin was showing a darkened pigmentation which was increasing. On 28^th September, Ryan was seen by another doctor at the practice for an unrelated condition in respect of his hands. In November 2012, when Ryan was seen by Dr Rudling, she noted on 7^th November that since the virus in July, Ryan had been tired and had lost weight. He had no energy and was very thin. Dr Rudling ordered full blood tests. Ryan and his mother returned on 21^st November for the results of the blood test; in the medical records the doctor noted 'Blood suggests a virus, is a bit better. Continue repeat bloods in 3 weeks, review, see again if worsens or not resolved'. The blood tests were unremarkable, save for a marginally low sodium result. …"

7. No criticism was made of Dr Rudling in respect of the blood tests she required to be carried out, nor of her reaction to them on 21 November. In respect of the two consultations, the Crown's sole criticism was that Dr Rudling did not weigh Ryan, but it was not suggested that such a failure would constitute gross negligence or was in any way causative of his death.
8. By December 2012, Ryan had taken part in a phased return to school but Mrs Morse had been called to collect him on 6 December on the basis that he was unwell; he complained of feeling ill, shaking and twice having been sick. He was cold then hot; he slept and then after a disturbed night, his mother described him as 'talking rubbish'. He had diarrhoea and had soiled himself. He had difficulty bearing his own weight, felt dizzy with weak legs, and his head was aching. Mrs Morse thought that the problem was a sickness bug which was going round the school. She phoned the surgery and, as a result of what she said to the receptionist, a note was made for the doctor to contact her: 'please can you ring/advise re vomiting bug and temperature'.
9. Dr Thomas accessed the electronic records and read the notes of the two previous consultations. She was told that the receptionist had asked Mrs Morse to bring the boy to the surgery but had been told that she did not want to bring him out. She phoned Mrs Morse at about 8.45 am. Mrs Morse recounted the history and said that she could not bring him to the surgery. She was advised to get some dissolvable paracetamol and to try to bring Ryan to the surgery at lunchtime; she repeated that she would be unable to do so as Ryan could not walk and was complaining about his legs. The note made of the conversation was as follows:

"Had a chat to parent, mum wanted tel advice. Unwell since yesterday, high temp and now diarrhoea +++; soiled himself up to his waist and didn't realise. Delerious (sic) but no vomiting, no rash, no photophobia, no sore throat, but not drinking. no cough, no earache. No abdo[minal] pain, won't take calpol doesn't like it. Need to get temp down so advised soluble paracetemol as wont swallow normal tabs either. clear fluids little sips and often. If delirium doesn't settle within 2 hrs after paracetemol then needs to be seen although mum doesn't think she could get him up. She will phone us if further concerns."

10. Mrs Morse accepted that the conversation ended with Dr Thomas saying 'You know where we are if you need us', which she understood meant a further telephone conversation or a visit.
11. Following this call, Ryan improved somewhat. He took soluble paracetamol, his temperature came down and (in Mrs Morse's words) he was 'more himself' and 'perked up a little'. She did not speak again to the surgery until later that afternoon (although he had been sick at lunchtime). At some time after 4.00 pm, he had another attack of diarrhoea and his mother cleaned him up; she then noticed that his genitalia were black. Having spoken to her husband, she again phoned the surgery. It was then that she spoke to Dr Rudling. Reverting to the summary provided by Nicola Davies J (based solely on the Crown's evidence):

"She rang at 17.45, asked to speak to a doctor, and on her account told the receptionist that her son had soiled himself and when she cleaned him up she had seen his penis and genitals were black. The receptionist put her through to Dr Rudling within a matter of seconds. On Mrs Morse's account she told the doctor that Ryan had been unwell all day; he had diarrhoea, he had been sick once at lunchtime, he had soiled himself and when she cleaned him up she saw that his penis and genitals were black. Mrs Morse said that she asked the doctor to come and see Ryan. To this, the doctor replied "No it's to do with his hormones. Ring up on Monday, we'll fit him in to be seen by a male doctor", the purpose being that on that occasion, Ryan would be examined; in particular, his genitalia would be examined."

12. No note was then made by Dr Rudling until the following Monday by which time Ryan had died: this gave rise to the allegation of doing an act tending and intended to pervert the course of public justice. Dr Rudling's note as prepared that morning (albeit dated the previous Friday) read:

"Telephone encounter. Spoke to mum on phone who said that when changing her son due to D & V noticed change colour genitalia now as a 12 year old boy said not looked at genitalia for some time. No pain or discomfort. Said that a bit better from temperature point of view. Offered to see or offered male doctor on Monday, mum said would ring."

13. Dr Rudling's case was that during the call she said "The receptionist tells me his genitalia have gone dark. Is she right?"; that Mrs Morse never used the word black; that she (Dr Rudling) said it could be hormonal but she would need to come and have a look and check; that there was a discussion about a male doctor because Mrs Morse said Ryan would not like his genitalia being checked by a female doctor; that she asked Mrs Morse whether it could wait until Monday, to which Mrs Morse's response was hesitant; that as a result of such hesitance, she asked about his temperature and whether he was in pain and discomfort and was told that his temperature was down and he was in no pain or discomfort. Mrs Morse denied that these had been aspects of the conversation.
14. The relevant expert evidence on behalf of the Crown was given by Dr Leonard Peter, a GP who had been in full time practice for 39 years and had given expert evidence in civil and disciplinary cases since 2004. The thrust of his evidence, which we deal with in more detail below, was that, faced with the alarming picture she was being given, Dr Rudling should have arranged to see Ryan within hours on her way home; and that, if she had, his condition would have made it apparent that he should go to hospital immediately, where he would have received life-saving treatment. As it was, very late that Friday night or in the early hours of the Saturday morning, Ryan died.
15. It was only thereafter that it was diagnosed as having been the result of Addison's disease crisis. It is critical to all that follows that there is no suggestion that any of the doctors who were concerned with Ryan over the months following July (and, in particular, neither of the doctors who spoke to Mrs Morse on 7 December) were at fault in failing to diagnose Addison's disease not least because of its rarity, especially in the case of a child.
16. At the heart of the case brought by the prosecution was an allegation of omission. This was described in its opening, in relation to Dr Rudling, in terms that her failure to respond to the concerns expressed by Mrs Morse in the conversation at 5.45 pm on 7 December was grossly negligent. It was put:

"[She] should have recognised that in [the] telephone [call] the mother was describing what could possibly be a very sick child indeed; a child so sick as to be at risk of death if he did not receive prompt medical treatment."

17. As a result, it is said that the doctor should have arranged for immediate, direct, medical intervention either by visiting the child at home to undertake a personal examination (which would have confirmed the gravity of the situation and led to immediate admission to hospital as an emergency case) or, if that was not possible, by summoning an ambulance.

The Law

18. We can summarise the law shortly. The critical ingredients of gross negligence manslaughter can be taken from R v Prentice, Adomako and Holloway [1994] QB 302 in this court and Adomako [1995] 1 AC 171, [1994] 99 Crim App R 362 in the House of Lords as well as R v Misra [2005] 1 Cr App R 21. They can be summarised as being the breach of an existing duty of care which it is reasonably foreseeable gives rise to a serious and obvious risk of death and does, in fact, cause death in circumstances where, having regard to the risk of death, the "conduct of the defendant was so bad in all the circumstances as to amount to a criminal act or omission" (see Adomoko [2005] 1 Cr App Rep at 369). The articulation of the last ingredient is expressed in R v Bateman (1925) 19 Cr App R 8 at 13 as satisfying the jury that:

"… the negligence or incompetence went beyond a mere matter of compensation and showed such disregard for the life and safety of others as to amount to a crime against the State and conduct deserving punishment."

19. Thus, approaching a submission of no case to answer in accordance with the well-known principles in R v Galbraith [1981] 73 Cr. App. R. 124, the judge had to assess whether there was any, or sufficient evidence, taken at its highest, upon which a jury properly directed could properly convict. In the context of this case, therefore, given the conceded duty of care, the judge had to reflect on the sufficiency of the evidence (a) in relation to cause of death; (b) as to the foreseeability of serious and obvious risk of death; and (c) as to negligence of sufficient gravity such that it was open to a jury to conclude that it amounted to a criminal act or omission. The submission focussed on the first two of these questions.

The Ruling

20. In her ruling, allowing the submission of no case to answer on behalf of Dr Rudling and Dr Thomas, the Judge dealt with the matter fully and with meticulous care. She reminded herself of principles which she accurately recorded were agreed between the parties. These included a requirement that breach of duty by Dr Rudling caused or made a significant contribution to the death of Ryan Morse; and that a reasonably prudent person would have concluded in all the circumstances that an obvious and serious risk to the life of Ryan Morse was present.
21. Having rejected the submission on behalf of Dr Rudling that there was insufficient evidence of the element of causation, she addressed the question of whether there was sufficient evidence to be left to the jury that there was an obvious risk to life at the time of the telephone call. She considered the evidence of Dr Peter and observed that the point he repeatedly made was of the need for a face to face assessment to provide what he described as "a global sense" of how Ryan was at that time. She regarded as critical the evidence which she recorded from Dr Peter to the effect that "I would have to go and assess to see if it was life-threatening." In fact the transcript which was before us, but not the Judge, records him as saying in the relevant passage:

"I would have to go and assess the child to see whether or not there was a life threatening potential…"

22. It was this answer which, in the Judge's opinion, illustrated the fundamental difficulty at the core of the prosecution case on this aspect of the element of gross negligence. Thus, the thrust of Dr Peter's evidence was the need for a face to face assessment of Ryan in order fully to assess the risk. It was that, as opposed to the obvious nature of the risk, which was present at the time of the telephone call.
23. There was little dispute that, with the benefit of hindsight, had a doctor seen Ryan by the early evening of Friday 7 December 2012, he or she would have seen and assessed a very sick boy. The judge went on, however, that it is not the assessment which would have been made at the visit which goes to the risk envisaged in the legal test; rather, it is the risk at the time of the telephone call. The judge then applied that test to the facts as they were or ought to have been known to Dr Rudling at the time of the phone call, together with the evidence of Dr Peter as to when the assessment that Ryan's illness was obviously life-threatening is likely to have been made, coupled with Professor Hughes' evidence that hyper-pigmentation was not, in itself, indicative of the adrenal crisis phase of Addison's disease. She then concluded, in respect of this aspect of the element of the test of gross negligence manslaughter, that the prosecution had not provided specific evidence that, at the time of the telephone call, a reasonably prudent person would conclude that an obvious and serious risk of death to Ryan Morse was present.
24. The Crown challenge the ruling on two grounds. The first is that the Judge erred in ruling that there was insufficient evidence that a reasonably competent GP should have recognised an obvious and serious risk to life. Mr Price argues that this conclusion is contrary to the evidence of Dr Peter when considered in a proper context. He submits that the thrust of his evidence was that what ought to have been apparent was that the doctor was dealing with a very sick child indeed, albeit from an unknown cause. In expressing the need for an examination "in order to fully assess the risk", Dr Peter was clearly expressing the opinion not only that the stated risk was present but also that it was one of sufficient seriousness as to call for immediate assessment by an examination specifically to exclude risk to life.
25. The second and alternative ground is that the information which Dr Rudling had about the change in colour of the genitalia was such that, on Mrs. Morse's account of the conversation, this itself gave rise to an immediate and obvious risk of a life threatening sepsis or infection, albeit that it is known with hindsight that that was not in fact the cause. Had the conversation been as Dr Rudling contended, it ruled out sepsis/infection because of the lack of discomfort or pain, but the dispute as to the content of the conversation was a matter for the jury, and the submission of no case to answer fell to be considered on the basis that the jury might accept Mrs Morse's account as true, in which case Dr Rudling had no information to discount sepsis or infection.
26. Ms Zoe Johnson Q.C. for Dr Rudling takes issue with each of these submissions. As for the first ground of appeal, the judge recognised the gravamen of Dr Peter's evidence was that the feature of black/dark genitalia was unusual, and that doctors should be 'curious'; it was for that reason that he opined that Dr Rudling should have gone to see Ryan. This evidence, however, did not and could not amount to suggesting there was an obvious risk of death at the time of the call. Indeed, Dr Peter's evidence that he would have to go and assess to see if it was potentially life-threatening, by definition means that it was unclear whether it was life-threatening at that point, and therefore the risk of death cannot be said to have been obvious.
27. Ms Johnson went on to argue that Dr Peter's evidence that the reported colour of the genitals was so unusual, indeed unique in his experience, also militated against the prosecution proving to the requisite standard that the risk was 'obvious'. Dr Peter had never seen it himself, and there were no guidelines drawn to the attention of the court as to what should be done when presented with those symptoms. Nor were the details of any relevant training provided to doctors in general, or general practitioners in particular, adduced in evidence. In those circumstances, it was not unreasonable for the Judge to hold that the prosecution had failed to prove, to the requisite standard, this important element (or in the prosecution's preferred term, 'component') of the serious charge of gross negligence manslaughter.
28. Turning to the second ground of appeal, Ms Johnson noted that the state of the evidence, which the Judge was best placed to assess, was analysed in full and in depth in her ruling. The relevant disputed part of the evidence is the denial by Mrs Morse that questions were asked or information imparted so as to convey that Ryan was not in pain/discomfort and that his temperature had improved. The Judge was entitled to find that the state of the evidence on this point was of so a tenuous character 'because of inherent weakness or vagueness or because it is inconsistent with other evidence' and that no jury could properly convict on it. Although not specifically stated as such by the Judge in her ruling, this, it is submitted, represents a fair interpretation of her findings.
29. Furthermore, the Judge was entitled to consider whether or not any jury could conclude so that they were sure that Mrs Morse was not mistaken when she stated that she had not provided that information to Dr Rudling given the unlikelihood of the coincidence that Dr Rudling recorded that which Mrs Morse would have said had she been asked. It was argued that the judge should also have regard to the number of other occasions regarding notes made by other doctors of information recorded by them which turned out to be accurate but which Mrs Morse denied supplying. Finally, it was also relevant that this evidence about the events of December 2012 was provided over a year later by means of ABE interviews in January 2014.

Analysis

30. The test which is applicable to a termination ruling is set out in section 67 of the 2003 Act, which provides that the Court of Appeal may not reverse a ruling on an appeal "unless it is satisfied (a) that the ruling was wrong in law; (b) that the ruling involved an error of law or principle; or (c) that the ruling was a ruling that it was not reasonable for the judge to have made".
31. There is no question of the Judge having been wrong in law or having made an error of law or principle either in relation to the law of gross negligence manslaughter or, indeed, in relation to her approach to the submission that there was no case to answer. If Mr Price is to succeed, therefore, the appeal must be brought within sub-paragraph (c) on the basis that the judge came to a conclusion in relation to the evidence of Dr Peter that it was not reasonable for her to have reached. Mr Price did not demur from this proposition and confirmed in argument that the essential complaint was that the Judge had misinterpreted and misconstrued Dr Peter's evidence.
32. That gives rise to two points which deserve emphasis at this stage. First, it is well established that it is insufficient that the judge could reasonably have reached the opposite conclusion from the one reached; the judge's conclusion must be outwith the range of reasonable conclusions which were open to him/her. This is a high hurdle: see R v B [2008] EWCA Crim 1144 at paragraph 19 per Sir Igor Judge, as he then was; and R v M & T [2009] EWCA Crim 2848 at paragraph 25 per Moses LJ.
33. Secondly, the judge in this case had the great advantage over us in seeing and hearing the evidence given, and being able to assess its tone, nuance and emphasis, none of which can be reproduced in a transcript. Where an application for leave to appeal is based on what is said to be "the thrust" of a witness's evidence and the judge's interpretation of it, this court must exercise particular caution because it is less well placed to discern such thrust from a transcript than the trial judge who has seen and heard the witness.
34. Although these caveats are important, irrespective of them, we are satisfied that the transcript fully supports the judge's conclusion in relation to what is the first ground of appeal. Dr Peter did not at any stage of his evidence state that, at the time of the phone call with Dr Rudling, there was an obvious and serious risk to Ryan's life. In his evidence in chief, he was not asked to address that question directly and did not do so. The closest he came was to say that a complaint of a 12 year old whose genitalia were black would be extremely alarming in a child who is showing the other symptoms of illness because one would start to think of infection of the skin perhaps; but that in any event, whether the report was of black genitalia or darkened genitalia, both were symptoms which could not be interpreted over the phone such that it was necessary to see the child for a face to face assessment.
35. Dr Peter had assented to a question in chief about the position during the phone call in the morning with Dr Thomas that "it [should] have occurred to a reasonable and competent general practitioner that this child might be at risk of death if not treated". However, by the end of cross examination by counsel on behalf of Dr Thomas, Dr Peter did not feel able to maintain that proposition so far as Dr Thomas was concerned, and had conceded that her assessment that the condition was likely explained by gastroenteritis, which was not life-threatening, was a reasonable one. Accordingly prior to cross examination on behalf of Dr Rudling, there was no extant evidence which could be treated as an expression of opinion by Dr Peter that there was an obvious and serious risk to life at the time of the evening call with Dr Rudling; and the only additional feature which might make it so, which was not part of the morning call with Dr Thomas, was the report of black or darkened genitalia.
36. The question of an obvious risk of death arose, or potentially arose, at three points in the cross examination. By that stage Dr Peter had confirmed that neither the change in colour of the genitalia, nor the diarrhoea, vomiting and other symptoms, should have appeared as life threatening if considered individually. It was then put to him in terms that nor did they in combination lead to a concern of a life-threatening condition. Dr Peter's response was not that they did. On the contrary his answer was that there were two things which might concern a GP, one being that there might be some damage to local skin tissue from impaired local blood supply, and the other being that there was something which as a GP it was difficult to understand and so called for risk management. His opinion was that the GP should be thinking "there could be something here that I'm not understanding or it could be something serious". He went on:

"Both of those conclusions call for an assessment, both by looking properly at the notes and by visiting Ryan."

37. In other words Dr Peter declined to say, in response to the direct question, that the situation was obviously life threatening, but rather offered the opinion that an assessment was necessary because "it could be something serious". On two subsequent occasions in cross examination, Dr Peter was asked whether the change in colour presented as a life threating condition, to which he responded that the whole picture had to be looked at, taking account of the combination of symptoms, and called for a face to face assessment. On neither occasion, however, did he offer the opinion that the combination of symptoms was obviously life threatening, as he surely would if he had been of that opinion given the way the question was framed. Instead he reiterated his view that a face to face assessment was necessary as a matter of risk management because this was a very unusual presentation. It was in this context that he said:

"I would have to go and assess the child to see whether or not there was a life-threatening potential….."

38. The nub of Mr Price's argument was that if it is necessary to have a face to face assessment in order to risk manage a patient and assess what might potentially be a life-threatening condition, it is necessarily implicit that there is an obvious and serious risk of death at that time. As he put it, the thrust of Dr Peter's evidence was that a reasonably competent GP would have said to himself/herself "I cannot eliminate the possibility that this child may be suffering from a rare risk to life without the child being seen urgently" and that that equates to an obvious and serious risk of death.
39. In our judgment, that proposition simply does not follow, as is apparent when one focuses on each of the three aspects of this ingredient of the offence of gross negligence manslaughter. At the time of the breach of duty, there must be a risk of death, not merely serious illness; the risk must be serious; and the risk must be obvious. A GP faced with an unusual presentation which is worrying and undiagnosed may need to ensure a face to face assessment urgently in order to investigate further. That may be in order to assess whether it is something serious, to use Dr Peter's expression, which may or may not be so serious as to be life-threatening. A recognisable risk of something serious is not the same as a recognisable risk of death.
40. What does not follow is that if a reasonably competent GP requires an urgent assessment of a worrying and undiagnosed condition, it is necessarily reasonably foreseeable that there is a risk of death. Still less does it demonstrate a serious risk of death, which is not to be equated with an 'inability to eliminate a possibility'. There may be numerous remote possibilities of very rare conditions which cannot be eliminated but which do not present a serious risk of death. Further, and perhaps most importantly, a mere possibility that an assessment might reveal something life-threatening is not the same as an obvious risk of death. An obvious risk is a present risk which is clear and unambiguous, not one which might become apparent on further investigation.
41. These distinctions are not a matter of semantics but represent real differences in the practical assessments which fall to be made by doctors. It is clearly of significance that Dr Peter did not in his evidence suggest that the need for a face to face assessment was because of an obvious and serious risk of death at the time of the phone call, either in chief or on any of the three occasions in cross examination when the opportunity to do so arose.
42. Accordingly the Judge's conclusion that there was no evidence upon which a jury could safely find an obvious and serious risk of death at the time of the phone call with Dr Rudling was not only a reasonable one, but in our view obviously correct.
43. The second ground of appeal is based on the premise that Mrs. Morse's account of the conversation gave rise to an immediate and obvious risk of a life threatening sepsis or infection, albeit that it is known with hindsight that that was not in fact the cause. We reject Ms Johnson's first answer to this submission that the judge was entitled to proceed on the basis of Dr Rudling's account of the telephone conversation in preference to that of Mrs Morse: the assessment of the factual issues were properly for the jury. Having said that, it is not clear to us that the judge proceeded otherwise than in accordance with a proper application of the principles in Galbraith.
44. Moving on, however, there are two short answers to the argument advanced by Mr Price. First, this was not the basis on which the case was opened or put against Dr Rudling. There was nothing in the opening, or Dr Peter's evidence in chief, to suggest that the relevant risk of death being alleged was a risk of sepsis or infection. The case was squarely put in the way which Mr Price has sought to support in his first ground of appeal, namely that this was a child presenting as gravely ill with a condition which could not be diagnosed specifically. Nor indeed was it an argument addressed on behalf of the Crown to the Judge in response to the submission of no case to answer. It is a new point raised for the first time on this appeal. Whereas errors of law or principle might be identifiable and capable of correction even if not argued at first instance, the judge's decision cannot be said to be unreasonable in failing to address an argument which was not advanced to her.
45. Secondly, Dr Peter's evidence did not support a case that the change in colour of the genitalia itself gave rise to a life threatening presentation of sepsis or infection. On the contrary, in cross examination, he confirmed that taken on its own the change in colour of the genitalia was not a life threatening presentation. There is force in Mr Price's submission that his answers in that respect were predicated on Dr Rudling's account of the conversation being correct, involving information of a lack of pain or discomfort and a lowering of temperature from the morning. Nevertheless Dr Peter's evidence of the risk apparent from the change in colour was potentially that of infarction, not sepsis or infection; and moreover Dr Peter did not at any stage of his evidence say or even hint that there was an obvious risk of death from sepsis or infection on either version of the conversation.

Conclusion

46. For these reasons we declined to give leave to the Crown to appeal the terminating ruling in relation to the count of manslaughter which Dr Rudling faced and, as a consequence, pursuant to s. 61(3) of the 2003 Act, we order that she be acquitted of that offence. In the event, we understand that, subsequent to the ruling, Nicola Davies J acceded to a submission to discharge the jury from considering the remaining count and ordered a retrial of this allegation within a matter of weeks. In the circumstances, s. 71 of the 2003 Act applies and given the speed with which the remaining allegation is to be tried, we do not consider that the reporting restrictions should be lifted; subsequent to the resolution of that trial, this judgment can be reported in full.